Portugal

Portugal has a long-standing opt-out representative regime anchored in Article 52(3) of the Portuguese Constitution. The general statutory framework is Law 83/95 (Popular Action Act (PAA)), which allows representative claims to protect diffuse interests, collective interests and homogeneous individual interests.

Separately from the general popular action framework, an injunctive action against unlawful/abusive standard contract terms has existed since Decree-Law 446/85 (standard contractual terms), later amended by Decree-Law 220/95 to transpose Directive 93/13/EEC.

The most relevant recent development is the transposition of Directive (EU) 2020/1828 (Representative Actions Directive (RAD)) on 5 December 2023 by Decree-Law 114-A/2023 (Representative Actions Act (RAA)).

From 1990 to 2024, over 700 civil popular/collective actions are reported as having been filed in Portugal. The number of actions filed annually increased in recent years, driven largely by new consumer associations such as Ius Omnibus and Citizen’s Voice. Beyond the increase in volume, a drastic change has occurred in the type and complexity of new actions, with many seeking large amounts of compensation for Portuguese consumers, in a global amount that currently exceeds EUR 60 billion.

Typical topical areas include:

• Consumer law (unfair commercial practices, product liability, sales of defective goods).
• Standard contract terms (injunctions to cease the use of unlawful/abusive clauses, sometimes coupled with restitution/repayment of amounts paid under such terms).
• Private enforcement of competition law (either follow-on or stand-alone cases).
• Regulatory/administrative law.
• Data protection law (GDPR-type claims).
• Securities/investor protection.

Portugal fundamentally operates an overlapping dual-track collective redress system, consisting of:

• popular actions under the PAA; available across all areas of law, protecting diffuse, collective and homogeneous individual interests; and
• consumer representative actions under the RAA.

The PAA is general and may be used across all areas of law, subject to lex specialis rules. These include:

• Civil procedure (Articles 31 and 303 of the Code of Civil Procedure (CPC) and Article 4(1) of the Procedural Costs Regulation).
• Administrative procedure (Article 9(2) of the Code of Administrative Court Procedure).
• Antitrust (Article 19 of the Private Enforcement Act (PEA)).
• Securities (Articles 31 and 32 of the Securities Code).
• Standard contractual terms (Articles 26 and 29 of Decree-Law 446/85).
• Consumer protection (Articles 10–13, 16 and 18(1)(l) of the Consumer Protection Act).
• Environmental protection (Article 7 of Law 19/2014 and Articles 9 and 10 of Law 35/98).
• Animal protection (Articles 9 and 10 of Law 92/95).
• Unfair commercial practices (Article 16 of Decree-Law 57/2008).
• Cultural heritage (Article 59 of Law 13/85).
• Women’s rights (Articles 3 and 7 of Law 107/2015).
• Commons and other collective means of production (Article 6(9) and (10) of Law 75/2017).
• Racist criminality (Single Article of Law 20/96).

The RAA covers collective actions protecting consumers’ collective interests based on infringements of national or EU rules reflected in Annex I of the RAD. Portuguese courts nonetheless have also applied the RAA in contexts not covered in Annex I to the RAD, such as in some issues in antitrust cases.

The areas of law listed in Section 2.1, above, are within scope.

A Portuguese “class action” is a representative proceeding in which an eligible claimant seeks judicial protection of diffuse, collective or individual interests on behalf of a plurality of affected persons, who are represented without individual mandates. The court identifies, in general terms, the “holders of the rights/interests at issue” and orders notice, after which represented persons are, in principle, bound by the outcome, regardless of their intervention in the procedure, unless they opt out within the statutory deadline.

Portuguese collective actions are governed by general civil procedure and feature neither a dedicated model-case mechanism nor a formal certification stage. A class action is brought by a representative claimant under the standing rules of the PAA or the RAA and is subject to an initial prima facie assessment (Article 13 of the PAA). If the claim is not manifestly unmeritorious or procedurally inadmissible, the court defines, in general terms, the scope of the represented class, orders service on the defendant and notice to class members and sets deadlines for intervention and opt-out.

Portugal is not a strict “loser-pays” jurisdiction and recoverable legal costs are generally limited under ordinary civil procedure rules. In contrast, as a rule, no filing fees are due in popular or representative actions (Article 20(1) of the PAA, Article 11(1) of the Consumer Protection Act and Article 18(1) of the RAA). Unless the claim is manifestly unfounded or there was procedural bad faith, the claimant is not required to pay any court fees and must pay only a very small amount of adverse costs. Represented persons are not parties and do not bear legal costs (Article 18(2) of the RAA).

Under the general rules, a successful claimant cannot recover their own expenses, including legal fees, generally, in the amount exceeding half of the total court fees. Again, special rules apply in popular and collective actions. Under the PAA, the court must determine the amount to be paid by the defendant to the claimant as “procuradoria”, which refers to legal costs as well as – arguably – other costs, including expenditures on economic expert reports and audits, and even costs associated with third-party funding, depending on the value and complexity of the case (Article 21 of the PAA). Apart from the defendant’s obligation to pay adverse costs, under the RAA and the PEA the undistributed portion of the global compensation is used to pay claimants’ expenses, which may include the remuneration of third-party funders.

Contingency fees (pactum quota litis) are prohibited and void under Portuguese Bar rules (Article 106 of Law 145/2015). Conditional fee arrangements may, however, be permissible where they take the form of a success fee linked to remuneration that would otherwise be payable, within the limits of the applicable professional rules (Article 105(3) of Law 145/2015).

To date, popular actions have not benefited from public funding, although the current legal framework leaves room for such funding to be introduced should the government decide to do so. Third-party litigation funding has been used in practice and is expressly regulated under the RAA. The funding agreement must be disclosed to the court (Article 10(1) of the RAA) and must preserve the claimant’s independence and prevent conflicts of interest (Article 10(3) and (4) of the RAA). In particular, the action is inadmissible if any defendant is a competitor of the funder or an entity on which the funder depends (Article 10(3)(4)(5) and (7) of the RAA). If the court finds non-compliance, it must invite the claimant to renounce the funding or amend the agreement (Article 10(8) of the RAA); failure to do so results in rejection of standing, without prejudice to the rights of represented persons, and with the possibility of the public prosecutor continuing the proceedings (Article 10(9) of the RAA).

In the absence of delaying incidents, it typically takes around one-and-a-half years to reach trial in general civil courts and one year in the specialised Competition Court. There is no special fast-track timetable for class actions as such. Complex class actions have seen longer durations as a rule. This reflects the relative novelty of the current framework, as courts and parties are still establishing precedent on key procedural and substantive issues, alongside addressing the merits of each case. As the regime matures, timelines may become more predictable.

Standing to bring a popular or a collective action varies according to the cause of the underlying claim. Under Article 2 of the PAA, a popular action can be brought by:

• Any citizen in full possession of political and civil rights.
• Associations and foundations whose statutory goal is to protect the interest in question and who do not compete with any professionals or companies.
• Municipalities, in relation to the interests of the residents of that municipality.

The public prosecutor has the right to initiate popular actions (at least) in specific fields and for the infringement of certain rules (i.e. the protection of public assets).

Sector-specific rules apply, widening or narrowing standing. For example, in antitrust cases, an association of undertakings or a trade association may bring a popular action for damages on behalf of harmed undertakings even if its statutes do not expressly include the protection of competition (Article 19(2)(b) of the PEA). The Directorate-General for Consumers has standing to bring actions under the Consumer Protection Act (Article 13(c)) and relating to standard contractual terms (Articles 26 and 29 of Decree-Law 446/85).

Under the RAA, a collective action can be initiated by:

• associations and foundations; and
• municipalities.

In addition to requirements prescribed by the PAA, associations and foundations must comply with Article 6 of the RAA, which requires independence and freedom from influence of non-consumers or persons who have an interest in initiating a collective action, notably funders.

For cross-border representative actions, only pre-designated qualified entities identified on the European Commission list have standing (Article 5(2) of the RAA).

The claim is brought by a representative on behalf of the class. All members of the class are represented by default and may opt out by declaration to the court until the end of the trial (Article 15 of the PAA). In collective actions under the RAA, opt-in applies for non-residents of Portugal (Article 12(1) of the RAA).

There is no minimum class size explicitly required by law. Since diffuse or collective interests must be at stake, the class must comprise a plurality of individuals affected by the defendant’s conduct.

In actions aimed at protecting subjective rights, the interests in question must be “homogeneous”. This requires the presence and dominance of common factual or legal issues between the members of the class, allowing a ruling without discussion of specific situations of individuals.

Portuguese law does not expressly address what happens with fully or partially overlapping collective proceedings. The framework tends to operate on a de facto first-to-file basis. The few instances of partly overlapping actions have been resolved with lis pendens (the second action is dismissed to the extent it overlaps). Under the RAA, represented persons who have not opted out may not be included in another collective or individual action with the same claim, cause of action and defendants.

With its preliminary non-dismissal of the case, the court orders notice to represented persons and sets a short deadline for intervention in support of the action (Article 15(1) of the PAA). Notice is made through public edict or announcements in newspapers (Article 15(2) and (3) of the PAA). In RAA actions, the claimant must also publish relevant information on its website (Article 19(1)(a) and (b) of the RAA), and the case is included in a public registry website (Article 20 of the RAA).

General rules (Articles 6(1) and 547 of the CPC) apply to case management of class actions. As a special rule, courts are required to be proactive in gathering evidence (Article 17 of the PAA). Despite the absence of a formal certification stage, one court has used its powers to divide the trial into two stages, first hearing evidence on and deciding the standing of the claimant, leading, in part, to what a certification stage might look like. Courts retain wide discretion to manage the proceedings, including by:

• inviting the claimant to amend funding agreements;
• determining the form and scope of notice of class members;
• setting deadlines for intervention and opt out;
• ordering the presentation and/or the preservation of evidence;
• structuring the evidentiary stage and trial timetable;
• determining the criteria for quantification of damages and verification of eligible beneficiaries; and
• supervising administration and distribution of compensation.

Expert evidence may be requested by either party or ordered by the court ex officio. The judge evaluates this evidence under the principle of free assessment (Articles 389 of the Civil Code and Articles 467(1) and 607(5) of the CPC).

Portuguese civil procedure does not provide for discovery in the common-law sense. Before trial, the court may order the parties to produce any evidence it considers relevant (Article 410 of the CPC). Other mechanisms are also available, including pre-filing disclosure actions (Articles 1045–1047 of the CPC) and conservatory measures aimed at preserving documents (Article 403 of the CPC). A duty to preserve evidence may arise, and a breach may lead to a reversal of the burden of proof, where it made proof impossible or excessively burdensome (Article 344(2) of the Civil Code).

In competition cases, following the Damages Directive, access-to-evidence tools have been frequently used, leading to broad disclosure and preservation orders, including for categories of documents (e.g. emails exchanged between certain persons in a certain period on a certain topic). There have been several pre-filing disclosure actions (Articles 12 and 13 of the PEA). One of these led to the Court of Justice of the European Union (CJEU) judgment in Meliá Hotel International v. Ius Omnibus (C-286/24). The CJEU confirmed that “plausibility” under Article 5(1) of the Damages Directive does not require a “more likely than not” standard; it suffices that it is reasonably acceptable that the infringement caused damage. Damage is proven if an effects restriction was declared, and is presumed for cartels. Confidentiality is not a bar per se, as the courts may — and do — order disclosure subject to effective safeguards for trade secrets or privacy (Article 12(7) of the PEA), while professional secrecy remains protected (Article 12(8) of the PEA).

Class actions may grant any admissible relief, including declarations of infringement, injunctions (e.g. orders to cease or to prevent infringements), damages or restitution (Article 3(c) and (d) of the RAA), either by definitive rulings or interim measures.

Claimants seeking injunctive relief need not prove actual harm suffered by consumers, nor fault of the professional. Under the RAA, definitive injunctive relief requires a pre-filing notification to the defendant (Article 11).

There are two types of awards of damages in class actions (Articles 22(2) and (3) of the PAA, Article 19(4) of PEA and Article 16(2) of the RAA):

• individual compensation directly to represented persons already identified in the case; and
• global compensation amount for represented persons not yet identified in the case (who tend to be the vast majority of the class).

Individual compensation follows general rules for individual damages (Articles 562 and 566 of the Portuguese Civil Code). The global compensation, paid to a distributing entity, is the total damage caused to the represented persons who were not individually identified.

Once damage has been established, damages must be awarded even if the quantum is uncertain, resorting to estimation (Article 566(3) of the Portuguese Civil Code).

Awards remain compensatory in nature, including where damages are granted as a global sum. Punitive damages are not available.

General civil procedure rules apply to settlement rules for class actions. Settlements must be reviewed for validity and approved by the court (Articles 283(2) and 290(1) and (3) of the CPC), who must ensure that such settlements serve the protection of the interests of the members of the class (Article 6(2) of the RAA). In class actions, the public prosecutor may intervene and replace the claimant if representation is inadequate, including in settlements (Article 16(1) of the PAA).

In theory, the generally available ADR mechanisms are also applicable to class actions. These include mediation, under Law 29/2013, and civil arbitration, under Law 62/2011.

The court must appoint an entity to receive, manage and pay out the global compensation. If the global compensation turns out to be insufficient, it is distributed pro rata to each person’s damage (Article 19(5) of the PEA and Article 16(3) of the RAA). The law foresees alternative distribution mechanisms that the court may consider more appropriate in the circumstances, to ensure the effective right to full compensation, such as direct payment by the defendant to verified class members.

The court sets a reasonable deadline for represented persons to claim their share of global compensation (Article 16(6) of the RAA and Article 19(7) of the PEA), up to a maximum of three years (limitation period) (Article 22(4) of the PAA).

Undistributed damages are then used to reimburse the claimant’s expenses. These include the remuneration of third-party funders, subject to court overview. This remuneration must be deemed fair and proportionate, considering the characteristics and risk factors of the specific collective action and the prevailing market price for such funding (Articles 10(6) and 16(7) of the RAA and Article 19(7) of the PEA).

Finally, any remainder reverts to the state for public interest uses: handed to the Ministry of Justice to support access to justice and future popular actions (Article 22(5) of the PAA), or 60% to the Consumer Rights Promotion Fund and 40% to the Institute for Financial Management and Justice Equipment (Article 16(8) of the RAA). In securities-related collective actions, the remainder is allocated to the relevant guarantee fund or, failing that, to the investors’ compensation system (Article 31(3) of the Securities Code).

Judgments in Portuguese collective proceedings are generally binding on represented persons on an opt-out basis. Represented persons are not bound by a dismissal based on insufficient evidence or for other case-specific reasons, which means that an adverse judgment will often not produce res judicata against the class (Article 19(1) of the PAA). Individuals who have not opted out are barred from being represented in other popular or collective actions or from bringing individual proceedings, where the subsequent case involves identity of claim, cause of action and defendants.

Enforcement follows ordinary civil procedural rules.

Future legislative developments are likely to focus on streamlining and harmonising Portugal’s fragmented collective redress landscape, aligning procedural rules across the PAA, the RAA and other specific regimes. Further national implementation measures under the Digital Services Act may drive additional reforms, with potential spill-over effects on collective enforcement and consumer redress. DSA implementation may also spur broader changes in the general collective redress framework, for instance, by prompting courts to provide overdue clarification on private international law rules applicable to collective damages claims arising from harmful conduct online, both on jurisdiction under the Brussels I Regulation and on applicable law under the Rome II Regulation.